REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
This Registration Rights Agreement (this “Agreement”) is made and entered into as of September
20, 2010, by and among Anthera Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and
the several purchasers signatory hereto (each a “Purchaser” and collectively, the “Purchasers”).
This Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date
hereof between the Company and each Purchaser (the “Purchase Agreement”).
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the Company and each of the Purchasers agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice” has the meaning set forth in Section 6(d).
“Affiliate” means, with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such person.
“Agreement” has the meaning set forth in the Preamble.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.
“Closing” has the meaning set forth in the Purchase Agreement.
“Closing Date” has the meaning set forth in the Purchase Agreement.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any
securities into which such common stock may hereinafter be reclassified.
“Company” has the meaning set forth in the Preamble.
“Effective Date” means the date that the Registration Statement filed pursuant to Section
2(a) is first declared effective by the Commission.
“Effectiveness Deadline” means, with respect to the Initial Registration Statement or the New
Registration Statement, the ninetieth (90th) calendar day following the Closing Date
(or, in the event the Commission reviews and has written comments to the Initial Registration
Statement or the New Registration Statement, the one hundred twentieth (120th) calendar
day following the Closing Date); provided, however, that if the Company is notified by the
Commission that the Initial Registration Statement or the New Registration Statement will not be
reviewed or is no longer subject to further review and comments, the Effectiveness Deadline as to
such Registration Statement shall be the fifth (5th) Trading Day following the date on
which the Company is so notified if such date precedes the dates
otherwise required above; provided, further, that if the Effectiveness Deadline falls on a
Saturday, Sunday
or other day that the Commission is closed for business, the Effectiveness
Deadline shall be extended to the next Business Day on which the Commission is open for business.
“Effectiveness Period” has the meaning set forth in Section 2(b).
“Event” has the meaning set forth in Section 2(c).
“Event Date” has the meaning set forth in Section 2(c).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Filing Deadline” means, with respect to the Initial Registration Statement required to be
filed pursuant to Section 2(a), the thirtieth (30th) calendar day following the
Closing Date, provided, however, that if the Filing Deadline falls on a Saturday, Sunday or other
day that the Commission is closed for business, the Filing Deadline shall be extended to the next
Business Day on which the Commission is open for business.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Indemnified Party” has the meaning set forth in Section 5(c).
“Indemnifying Party” has the meaning set forth in Section 5(c).
“Initial Registration Statement” means the initial Registration Statement filed pursuant to
Section 2(a) of this Agreement.
“Liquidated Damages” has the meaning set forth in Section 2(c).
“Losses” has the meaning set forth in Section 5(a).
“New Registration Statement” has the meaning set forth in Section 2(a).
“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.
“Placement Agent” means Xxxxx Xxxxxxx & Co., Wedbush PacGrow Life Sciences and any permitted
assigns.
“Principal Market” means the Trading Market on which the Common Stock is primarily listed on
and quoted for trading, which, as of the Closing Date, shall be the Nasdaq Global Market.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering
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of any portion of the Registrable Securities covered by a Registration Statement, and
all other amendments and supplements to the Prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
“Purchase Agreement” has the meaning set forth in the Recitals.
“Purchaser” or “Purchasers” has the meaning set forth in the Preamble.
“Registrable Securities” means all of (i) the Shares, (ii) the Warrant Shares and (iii) any
securities issued or issuable upon any exchange or conversion of the foregoing in a Fundamental
Transaction (as defined in the Warrants) or in connection with any stock split, dividend or other
distribution, recapitalization or similar event with respect to the foregoing, provided, that the
Holder has completed and delivered to the Company a Selling Stockholder Questionnaire; and
provided, further, that with respect to a particular Holder, such Holder’s Shares and Warrant
Shares shall cease to be Registrable Securities upon the earliest to occur of the following: (A) a
sale pursuant to a Registration Statement or Rule 144 under the Securities Act (in which case, only
such security sold by the Holder shall cease to be a Registrable Security); or (B) becoming
eligible for resale by the Holder under Rule 144 without the requirement for the Company to be in
compliance with the current public information required thereunder and without volume or
manner-of-sale restrictions, pursuant to a written opinion letter to such effect, addressed,
delivered and acceptable to the Transfer Agent.
“Registration Statements” means any one or more registration statements of the Company filed
under the Securities Act that covers the resale of any of the Registrable Securities pursuant to
the provisions of this Agreement (including without limitation the Initial Registration Statement,
the New Registration Statement and any Remainder Registration Statements), including (in each case)
the amendments and supplements to such Registration Statements, including pre- and post-effective
amendments thereto, all exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such Registration Statements.
“Remainder Registration Statement” has the meaning set forth in Section 2(a).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“SEC Guidance” means (i) any publicly-available written or oral guidance, comments,
requirements or requests of the Commission staff and (ii) the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
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“Selling Stockholder Questionnaire” means a questionnaire in the form attached as Annex
B hereto, or such other form of questionnaire as may reasonably be adopted by the Company from
time to time.
“Shares” means the shares of Common Stock issued or issuable to the Purchasers pursuant to the
Purchase Agreement.
“Trading Day” means (i) a day on which the Common Stock is listed or quoted and traded on its
Principal Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed on
a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is traded in
the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is
not quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter
market as reported in the “pink sheets” by Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event that the Common Stock
is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a
Business Day.
“Trading Market” means whichever of the New York Stock Exchange, the NYSE Alternext (formerly
the American Stock Exchange), the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ
Capital Market or OTC Bulletin Board on which the Common Stock is listed or quoted for trading on
the date in question.
“Warrants” means the Warrants issued pursuant to the Purchase Agreement.
“Warrant Shares” means the shares of Common Stock issued or issuable upon exercise of the
Warrants.
2. Registration.
(a) On or prior to the Filing Deadline, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of all of the Registrable Securities not already
covered by an existing and effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the
Registrable Securities, by such other means of distribution of Registrable Securities as the
Holders may reasonably specify (the “Initial Registration Statement”). The Initial Registration
Statement shall be on Form S-1 (or such other form available to register for resale the Registrable
Securities as a secondary offering) subject to the provisions of Section 2(e) and shall
contain (except if otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement) the “Plan of Distribution” section attached hereto as
Annex A (which may be modified to respond to comments, if any, provided by the Commission).
Notwithstanding the registration obligations set forth in this Section 2, in the event the
Commission informs the Company that all of the Registrable Securities cannot, as a result of the
application of Rule 415, be registered for resale as a secondary offering on a single registration
statement, the Company agrees to promptly (i) inform each of the Holders thereof and use its
commercially reasonable efforts to file amendments to the Initial Registration Statement as
required by the Commission and/or (ii) withdraw the Initial Registration Statement and file a new
registration statement (a “New Registration Statement”), in either case covering the maximum number
of Registrable Securities permitted to be registered by the Commission, on Form S-1 or such other
form available to register for resale the Registrable Securities as a secondary offering; provided,
however, that prior to filing such amendment or New Registration Statement, the Company shall be
obligated to use its commercially reasonable efforts to advocate with the Commission for the
registration of all of the Registrable Securities in accordance with the SEC Guidance, including
without limitation, the Manual of
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Publicly Available Telephone Interpretations D.29 and Compliance and Disclosure
Interpretations. Notwithstanding any other provision of this Agreement and subject to the payment
of liquidated damages in Section 2(c), if any SEC Guidance sets forth a limitation of the
number of Registrable Securities permitted to be registered on a particular Registration Statement
as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate
with the Commission for the registration of all or a greater number of Registrable Securities),
unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration Statement will first be reduced by
Registrable Securities not acquired pursuant to the Purchase Agreement (whether pursuant to
registration rights or otherwise), second by Registrable Securities represented by holders of
Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on
a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders) and
third by Registrable Securities represented by Shares (applied, in the case that some Shares may be
registered, to the Holders on a pro rata basis based on the total number of unregistered Shares
held by such Holders, subject to a determination by the Commission that certain Holders must be
reduced first based on the number of Shares held by such Holders). In the event the Company amends
the Initial Registration Statement or files a New Registration Statement, as the case may be, under
clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with
the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to
registrants of securities in general, one or more registration statements on Form S-1 or such other
form available to register for resale those Registrable Securities that were not registered for
resale on the Initial Registration Statement, as amended, or the New Registration Statement (the
“Remainder Registration Statements”).
(b) The Company shall use its reasonable best efforts to cause each Registration Statement to
be declared effective by the Commission as soon as practicable and, with respect to the Initial
Registration Statement or the New Registration Statement, as applicable, no later than the
Effectiveness Deadline (including filing with the Commission a request for acceleration of
effectiveness in accordance with Rule 461 promulgated under the Securities Act), and shall use its
commercially reasonable efforts to keep each Registration Statement continuously effective under
the Securities Act until all of the Shares and Warrant Shares shall cease to be Registrable
Securities (the “Effectiveness Period”). The Company shall telephonically request effectiveness of
a Registration Statement as of 5:00 P.M. New York City time on a Trading Day. The Company shall
promptly notify the Holders via facsimile or electronic mail of the effectiveness of a Registration
Statement on the same Trading Day that the Company telephonically confirms effectiveness with the
Commission, which date of confirmation shall initially be the date requested for effectiveness of
such Registration Statement. The Company shall, by 9:30 A.M. New York City time on the first
Trading Day after the Effective Date, file a final Prospectus with the Commission, as required by
Rule 424(b). Failure to so notify the Holders on or before the second Trading Day after such
notification or effectiveness or failure to file a final Prospectus as aforesaid shall be deemed an
Event under Section 2(c).
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to
the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as
applicable, is not declared effective by the Commission (or otherwise does not become effective)
for any reason on or prior to the Effectiveness Deadline or (iii) after its Effective Date and
except for the reason as set forth in Section 2(e), (A) such Registration Statement ceases
for any reason (including without limitation by reason of a stop order, or the Company’s failure to
update the Registration Statement) to remain continuously effective as to all Registrable
Securities included in such Registration Statement or (B) the Holders are not permitted to utilize
the Prospectus therein to resell such Registrable Securities for any reason, in each case, for more
than an aggregate of twenty (20) consecutive calendar days or forty (40) calendar days (which need
not be consecutive days) during any twelve (12) month period, or (iv) the Company fails to satisfy
the current public information requirement pursuant to Rule 144(c)(1) as a result
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of which the Holders who are not affiliates are unable to sell Registrable Securities without
restriction under Rule 144 (or any successor thereto), (any such failure or breach in clauses (i)
through (iv) above being referred to as an “Event,” and, for purposes of clauses (i), (ii) or (iv),
the date on which such Event occurs, or for purposes of clause (iii), the date on which such twenty
(20) or forty (40) calendar day period is exceeded, being referred to as an “Event Date”), then in
addition to any other rights the Holders may have hereunder or under applicable law, on each such
Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall
not have been cured by such date) until the earlier of (1) the applicable Event is cured or (2) the
Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or
volume restrictions, the Company shall pay to each Holder an amount in cash, as partial liquidated
damages and not as a penalty (“Liquidated Damages”), equal to one and one-half percent (1.5%) of
the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any
unregistered Registrable Securities then held by such Holder. The parties agree that (1) the
Company will not be liable for Liquidated Damages under this Agreement with respect to any Warrants
or Warrant Shares (prior to their issuance), (2) notwithstanding anything to the contrary herein or
in the Purchase Agreement, no Liquidated Damages shall be payable with respect to any period after
the expiration of the Effectiveness Period (except in respect of an Event described in Section
2(c)(iv) herein), (it being understood that this sentence shall not relieve the Company of any
Liquidated Damages accruing prior to the Effectiveness Deadline) and in no event shall, the
aggregate amount of Liquidated Damages (excluding Liquidated Damages payable in respect of an Event
described in Section 2(c)(iv) herein) payable to a Holder exceed, in the aggregate, twelve
percent (12%) of the aggregate purchase price paid by such Holder pursuant to the Purchase
Agreement) and (3) in no event shall the Company be liable in any thirty (30) day period for
Liquidated Damages under this Agreement in excess of one and one-half percent (1.5%) of the
aggregate purchase price paid by the Holders pursuant to the Purchase Agreement. If the Company
fails to pay any Liquidated Damages pursuant to this Section 2(c) in full within five (5)
Business Days after the date payable, the Company will pay interest thereon at a rate of one and
one-half percent (1.5%) per month (or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until
such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to
the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure
of an Event, except in the case of the first Event Date. Notwithstanding the foregoing, nothing
shall preclude any Holder from pursuing or obtaining any available remedies at law, specific
performance or other equitable relief with respect to this Section 2(c) in accordance with
applicable law. The Company shall not be liable for Liquidated Damages under this Agreement as to
any Registrable Securities which are not permitted by the Commission to be included in a
Registration Statement due solely to SEC Guidance from the time that it is determined that such
Registrable Securities are not permitted to be registered until such time as the provisions of this
Agreement as to the Remainder Registration Statements required to be filed hereunder are triggered,
in which case the provisions of this Section 2(c) shall once again apply, if applicable.
In such case, the Liquidated Damages shall be calculated to only apply to the percentage of
Registrable Securities which are permitted in accordance with SEC Guidance to be included in such
Registration Statement. The Effectiveness Deadline for a Registration Statement shall be extended
without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain
the effectiveness of the Registration Statement on a timely basis results from the failure of a
Purchaser to timely provide the Company with information requested by the Company and necessary to
complete the Registration Statement in accordance with the requirements of the Securities Act (in
which the Effectiveness Deadline would be extended with respect to Registrable Securities held by
such Purchaser).
(d) Each Holder agrees to furnish to the Company a completed Selling Stockholder Questionnaire
not more than five (5) Trading Days following the date of this Agreement. At least ten (10) Trading
Days prior to the first anticipated filing date of a Registration Statement for any registration
under this Agreement, the Company will notify each Holder of the information the Company requires
from that Holder other than the information contained in the Selling Stockholder Questionnaire, if
any,
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which shall be completed and delivered to the Company promptly upon request and, in any event,
within three (3) Trading Days prior to the applicable anticipated filing date. Each Holder further
agrees that it shall not be entitled to be named as a selling securityholder in the Registration
Statement or use the Prospectus for offers and resales of Registrable Securities at any time,
unless such Holder has returned to the Company a completed and signed Selling Stockholder
Questionnaire and a response to any requests for further information as described in the previous
sentence. If a Holder of Registrable Securities returns a Selling Stockholder Questionnaire or a
request for further information, in either case, after its respective deadline, the Company shall
use its commercially reasonable efforts to take such actions as are required to name such Holder as
a selling security holder in the Registration Statement or any pre-effective or post-effective
amendment thereto and to include (to the extent not theretofore included) in the Registration
Statement the Registrable Securities identified in such late Selling Stockholder Questionnaire or
request for further information. Each Holder acknowledges and agrees that the information in the
Selling Stockholder Questionnaire or request for further information as described in this
Section 2(d) will be used by the Company in the preparation of the Registration Statement
and hereby consents to the inclusion of such information in the Registration Statement.
(e) The Company shall (i) register the resale of the Registrable Securities on Form S-1 and
(ii) undertake to register the Registrable Securities on Form S-3 promptly after such form is
available pursuant to a post-effective amendment to Form S-1 on Form S-3, provided that the Company
shall have a period of up to forty-five (45) days between the filing of a post-effective amendment
to register the Registrable Securities on Form S-3 and the time that the Registration Statement
covering the Registrable Securities has been declared effective by the Commission, which time
period shall not be considered an “Event” hereunder and no Liquidated Damages shall accrue or be
payable with respect thereto.
3. Registration Procedures
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than five (5) Trading Days prior to the filing of each Registration Statement and
not less than one (1) Trading Day prior to the filing of any related Prospectus or any amendment or
supplement thereto (except for Annual Reports on Form 10-K, and Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K and any similar or successor reports), (i) furnish to the Holder copies
of such Registration Statement, Prospectus or amendment or supplement thereto, as proposed to be
filed, which documents will be subject to the review of such Holder (it being acknowledged and
agreed that if a Holder does not object to or comment on the aforementioned documents within such
five (5) Trading Day or one (1) Trading Day period, as the case may be, then the Holder shall be
deemed to have consented to and approved the use of such documents) and (ii) use commercially
reasonable efforts to cause its officers and directors, counsel and independent registered public
accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of
respective counsel to each Holder, to conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file any Registration Statement or any such Prospectus or
any amendments or supplements thereto in a form to which a Holder reasonably objects in good faith,
provided that, the Company is notified of such objection in writing within the five (5) Trading Day
or one (1) Trading Day period described above, as applicable.
(b) (i) Subject to Section 2(e), prepare and file with the Commission such amendments
(including post-effective amendments) and supplements, to each Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep such Registration Statement
continuously effective as to the applicable Registrable Securities for its Effectiveness Period;
(ii) cause the related Prospectus to be amended or supplemented by any required Prospectus
supplement (subject to
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the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule
424; (iii) respond as promptly as reasonably practicable to any comments received from the
Commission with respect to each Registration Statement or any amendment thereto and, as promptly as
reasonably possible, provide the Holders true and complete copies of all correspondence from and to
the Commission relating to such Registration Statement that pertains to the Holders as “Selling
Stockholders” but not any comments that would result in the disclosure to the Holders of material
and non-public information concerning the Company; and (iv) comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities
covered by a Registration Statement until such time as all of such Registrable Securities shall
have been disposed of (subject to the terms of this Agreement) in accordance with the intended
methods of disposition by the Holders thereof as set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented; provided, however, that each Purchaser shall be
responsible for the delivery of the Prospectus to the Persons to whom such Purchaser sells any of
the Shares or the Warrant Shares (including in accordance with Rule 172 under the Securities Act),
and each Purchaser agrees to dispose of Registrable Securities in compliance with the “Plan of
Distribution” described in the Registration Statement and otherwise in compliance with applicable
federal and state securities laws. In the case of amendments and supplements to a Registration
Statement which are required to be filed pursuant to this Agreement (including pursuant to this
Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K
or any analogous report under the Exchange Act, the Company shall have incorporated such report by
reference into such Registration Statement, if applicable, or shall file such amendments or
supplements with the Commission on the same day on which the Exchange Act report which created the
requirement for the Company to amend or supplement such Registration Statement was filed.
(c) Notify the Holders (which notice shall, pursuant to clauses (iii) through (vi) hereof, be
accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have
been made) as promptly as reasonably practicable (and, in the case of (i)(A) below, not less than
one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice
in writing no later than one (1) Trading Day following the day: (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be
filed; (B) when the Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on any Registration
Statement (in which case the Company shall provide to each of the Holders true and complete copies
of all comments that pertain to the Holders as a “Selling Stockholder” or to the “Plan of
Distribution” and all written responses thereto, and each Holder who holds more than ten percent
(10%) of the Registrable Securities covered by such Registration Statement, true and complete
copies of all comments and all written responses thereto, but not information that the Company
believes would constitute material and non-public information); and (C) with respect to each
Registration Statement or any post-effective amendment, when the same has become effective; (ii) of
any request by the Commission or any other Federal or state governmental authority for amendments
or supplements to a Registration Statement or Prospectus or for additional information that
pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”; (iii) of the
issuance by the Commission or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation
or threatening of any Proceeding for such purpose; (v) of the occurrence of any event or passage of
time that makes the financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or the Prospectus, as the case may
be, it will not contain any untrue statement of a material fact or omit to state any material fact
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required to be stated therein or necessary to make the statements therein (in the case of any
Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which
they were made), not misleading and (vi) of the occurrence or existence of any pending corporate
development with respect to the Company that the Company reasonably believes is material and that,
in the determination of the Company, makes it not in the best interest of the Company to allow
continued availability of a Registration Statement or Prospectus, provided that, any and all such
information shall remain confidential to each Holder (who may disclose such information only to
such Holder’s employees, accountants, attorneys and professional advisors who need to know such
information in order to fulfill such party’s obligations to Holder, who are informed of the
confidential nature of such information and who are bound by a confidentiality and non-disclosure
agreement pertaining thereto) until such information otherwise becomes public, unless disclosure by
a Holder is required by law; and provided, further, that notwithstanding each Holder’s agreement to
keep such information confidential, each such Holder makes no acknowledgement that any such
information provided pursuant to Section 3(c) is material, non-public information.
(d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, as soon as practicable.
(e) If requested by a Holder, furnish to such Holder, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission; provided, that the Company shall
have no obligation to provide any document pursuant to this clause that is available on the
Commission’s XXXXX system.
(f) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable
efforts to register or qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from the registration or qualification) of such
Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things reasonably necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that
the Company shall not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified, subject the Company to any material tax in any such jurisdiction where it
is not then so subject or file a general consent to service of process in any such jurisdiction.
(g) If requested by a Holder, cooperate with such Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be delivered to a transferee
pursuant to the Registration Statement, which certificates shall be free, to the extent permitted
by the Purchase Agreement and under law, of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names as any such Holders may
reasonably request.
(h) Following the occurrence of any event contemplated by Section 3(c), as promptly as
reasonably practicable (taking into account the Company’s good faith assessment of any adverse
consequences to the Company and its stockholders of the premature disclosure of such event),
prepare a supplement or amendment, including a post-effective amendment, to the affected
Registration Statements or a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other required document so that, as
thereafter delivered, no Registration
9
Statement nor any Prospectus will contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances
under which they were made), not misleading. If the Company notifies the Holders in accordance
with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus
until the requisite changes to such Prospectus have been made, then the Holders shall suspend use
of such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the
Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise
its right under this Section 3(h) to suspend the availability of a Registration Statement
and Prospectus, subject to the payment of partial Liquidated Damages otherwise required pursuant to
Section 2(c), for a period not to exceed forty (40) calendar days (which need not be
consecutive days) in any twelve (12) month period. For the avoidance of doubt, any period of time
for which the availability of a Registration Statement and Prospectus are suspended pursuant to
Section 2(e) shall be disregarded when determining the time period allotted under this
Section 3(h).
(i) The Company may require each selling Holder to furnish to the Company a certified
statement as to (i) the number of shares of Common Stock beneficially owned by such Holder and any
Affiliate thereof, (ii) any Financial Industry Regulatory Authority (“FINRA”) affiliations, (iii)
any natural persons who have the power to vote or dispose of the common stock and (iv) any other
information as may be requested by the Commission, FINRA or any state securities commission. During
any periods that the Company is unable to meet its obligations hereunder with respect to the
registration of Registrable Securities because any Holder fails to furnish such information within
three (3) Trading Days of the Company’s request, any Liquidated Damages that are accruing at such
time as to such Holder only shall be tolled and any Event that may otherwise occur solely because
of such delay shall be suspended as to such Holder only, until such information is delivered to the
Company.
(j) The Company shall cooperate with any registered broker through which a Holder proposes to
resell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as
requested by any such Holder and the Company shall pay the filing fee required for the first such
filing within two (2) Business Days of the request therefor.
4. Registration Expenses. All fees and expenses incident to the Company’s performance
of or compliance with its obligations under this Agreement (excluding any underwriting discounts
and selling commissions and all legal fees and expenses of legal counsel for any Holder) shall be
borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with any Trading Market on which the Common Stock
is then listed for trading, (B) with respect to compliance with applicable state securities or Blue
Sky laws (including, without limitation, fees and disbursements of counsel for the Company in
connection with Blue Sky qualifications or exemptions of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment under the laws of
such jurisdictions as requested by the Holders) and (C) if not previously paid by the Company in
connection with Section 3(j) above, with respect to any filing that may be required to be
made by any broker through which a Holder intends to make sales of Registrable Securities with
FINRA pursuant to the FINRA Rule 5110, so long as the broker is receiving no more than a customary
brokerage commission in connection with such sale, (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities and of printing
prospectuses if the printing of prospectuses is reasonably requested by the Holders of a majority
of the Registrable Securities included in the Registration Statement), (iii) messenger, telephone
and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act
liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all
other Persons retained by the Company in connection with the
10
consummation of the transactions contemplated by this Agreement. In addition, the Company
shall be responsible for all of its internal expenses incurred in connection with the consummation
of the transactions contemplated by this Agreement (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties), the expense of any
annual audit and the fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. In no event shall the Company be
responsible for any underwriting, broker or similar fees or commissions of any Holder or, except to
the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify, defend and hold harmless each Holder, the officers,
directors, agents, partners, members, managers, stockholders, Affiliates and employees of each of
them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers,
stockholders, agents and employees of each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and investigation and reasonable
attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based
upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in
any preliminary prospectus, or arising out of or relating to any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, or (ii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act or any state securities law or any
rule or regulation thereunder, in connection with the performance of its obligations under this
Agreement, except to the extent, but only to the extent, that (A) such untrue statements, alleged
untrue statements, omissions or alleged omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder’s proposed method of
distribution of Registrable Securities and was reviewed and approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in
any amendment or supplement thereto (it being understood that each Holder has approved Annex
A hereto for this purpose) or (B) in the case of an occurrence of an event of the type
specified in Section 3(c)(iii)-(vi), related to the use by a Holder of an outdated
or defective Prospectus after the Company has notified such Holder in writing that the Prospectus
is outdated or defective and prior to the receipt by such Holder of the Advice contemplated and
defined in Section 6(d) below, to the extent that following the receipt of the Advice the
misstatement or omission giving rise to such Loss would have been corrected or (C) to the extent
that any such Losses arise out of the Purchaser’s (or any other indemnified Person’s) failure to
send or give a copy of the Prospectus or supplement (as then amended or supplemented), if required,
pursuant to Rule 172 under the Securities Act (or any successor rule) to the Persons asserting an
untrue statement or alleged untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such Prospectus or supplement. The Company
shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising
from or in connection with the transactions contemplated by this Agreement of which the Company is
aware. Such indemnity shall remain in full force and effect regardless of any investigation made
by or on behalf of an Indemnified Party (as defined in Section 5(c)) and shall survive the
transfer of the Registrable Securities by the Holders.
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(b) Indemnification by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising
out of or are based solely upon any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus, or any form of prospectus or supplement thereto,
in light of the circumstances under which they were made) not misleading (i) to the extent that
such untrue statements or omissions are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for use therein or (ii) to the extent
that such information relates to such Holder or such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and approved in writing by such Holder expressly for use in
a Registration Statement (it being understood that the Holder has approved Annex A hereto
for this purpose), such Prospectus or such form of Prospectus or in any amendment or supplement
thereto or (iii) in the case of an occurrence of an event of the type specified in Section
3(c)(iii)-(vi), to the extent related to the use by such Holder of an outdated or
defective Prospectus after the Company has notified such Holder in writing that the Prospectus is
outdated or defective and prior to the receipt by such Holder of the Advice contemplated in
Section 6(d). In no event shall the liability of any selling Holder hereunder be greater
in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation and in no event shall such
settlement include any non-monetary limitation on the actions of any Indemnified Person or any of
its Affiliates or any admission of fault or liability on behalf of any such Indemnified Person.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all reasonable fees and expenses incurred in connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent
that it shall be finally determined by a court of competent jurisdiction (which determination is
not subject to appeal or further review) that such failure shall have materially and adversely
prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel that a conflict of interest exists if
the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have
the right to assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Party); provided, that the Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys at any time for all Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of any such
12
Proceeding effected without its written consent, which consent shall not be unreasonably
withheld, delayed or conditioned. No Indemnifying Party shall, without the prior written consent
of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
Subject to the terms of this Agreement, all fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this Section 5) shall
be paid to the Indemnified Party, as incurred, within twenty (20) Trading Days of written notice
thereof to the Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse
the Indemnifying Party for that portion of such fees and expenses applicable to such actions for
which such Indemnified Party is finally judicially determined to not be entitled to indemnification
hereunder). The failure to deliver written notice to the Indemnifying Party within a reasonable
time of the commencement of any such action shall not relieve such Indemnifying Party of any
liability to the Indemnified Party under this Section 5, except to the extent that the
Indemnifying Party is materially and adversely prejudiced in its ability to defend such action.
(d) Contribution. If a claim for indemnification under Section 5(a) or
5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such
Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions, statements or omissions that resulted
in such Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a result of any Losses shall be
deemed to include, subject to the limitations set forth in this Agreement, any reasonable
attorneys’ or other reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section 5 was available to such party in accordance
with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section 5(d), (A)
no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by
which the net proceeds actually received by such Holder from the sale of the Registrable Securities
subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission and (B) no contribution will be made under circumstances where the maker of such
contribution would not have been required to indemnify the Indemnified Party under the fault
standards set forth in this Section 5. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 5 are in addition to
any liability that the Indemnifying Parties may have to the Indemnified Parties and are not in
diminution or limitation of the indemnification provisions under the Purchase Agreement.
13
6. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of any of their
obligations under this Agreement, each Holder or the Company, as the case may be, in addition to
being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) No Piggyback on Registrations; Prohibition on Filing Other Registration
Statements. Except and to the extent specified in the Disclosure Schedules to the Purchase
Agreement (the “Existing Registration Rights”), neither the Company nor any of its security holders
(other than the Holders in such capacity pursuant hereto) may include securities of the Company in
a Registration Statement other than the Registrable Securities or securities subject to Existing
Registration Rights and the Company shall not prior to the Effective Date enter into any new
agreement providing any such right to any of its security holders. The Company shall not file with
the Commission a registration statement relating to an offering for its own account under the
Securities Act of any of its equity securities other than a registration statement on Form S-8 or,
in connection with an acquisition, on Form S-4 until the earlier of (i) the date that is thirty
(30) days after the Initial Registration Statement or New Registration Statement, as the case may
be, is declared effective or (ii) the date that all Registrable Securities are eligible for resale
by non-affiliates without volume or manner of sale restrictions under Rule 144 and without the
requirement for the Company to be in compliance with the current public information requirements
under Rule 144. For the avoidance of doubt, the Company shall not be prohibited from preparing and
filing with the Commission a registration statement relating to an offering of Common Stock by
existing stockholders of the Company under the Securities Act pursuant to the terms of registration
rights held by such stockholder or from filing amendments to registration statements filed prior to
the date of this Agreement.
(c) Compliance. Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption
therefrom is available) in connection with sales of Registrable Securities pursuant to the
Registration Statement and shall sell the Registrable Securities only in accordance with a method
of distribution described in the Registration Statement
(d) Discontinued Disposition. By its acquisition of Registrable Securities, each
Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the
kind described in Section 3(c)(iii)-(vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement until it is advised in
writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have
been supplemented or amended) may be resumed. The Company will use its reasonable best efforts
to ensure that the use of the Prospectus may be resumed as promptly as is practicable. Except as
otherwise set forth in Section 2(e), the Company agrees and acknowledges that any periods
during which the Holder is required to discontinue the disposition of the Registrable Securities
hereunder shall be subject to the provisions of Section 2(c).
(e) No Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has
entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or after the
date hereof, enter into any agreement with respect to its securities, that would have the effect of
impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.
14
(f) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, or waived unless the
same shall be in writing and signed by the Company and Holders holding no less than a majority of
the then outstanding Registrable Securities, provided that any party may give a waiver as to
itself. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders and that does not
directly or indirectly affect the rights of other Holders may be given by Holders of all of the
Registrable Securities to which such waiver or consent relates; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(g) Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered as set forth in the Purchase Agreement.
(h) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to the
benefit of each Holder. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. The Company may not assign its rights (except by merger or in
connection with another entity acquiring all or substantially all of the Company’s assets) or
obligations hereunder without the prior written consent of all the Holders of the then outstanding
Registrable Securities. Each Holder may assign its respective rights with respect to any or all of
its Shares and/or Warrant Shares hereunder in the manner and to the Persons as permitted under the
Purchase Agreement; provided in each case that (i) the Holder agrees in writing with the transferee
or assignee to assign such rights and related obligations under this Agreement, and for the
transferee or assignee to assume such obligations, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such registration rights are
being transferred or assigned, (iii) at or before the time the Company received the written notice
contemplated by clause (ii) of this sentence, the transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained herein and (iv) the transferee is an
“accredited investor,” as that term is defined in Rule 501 of Regulation D.
(i) Execution and Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf” signature were the original
thereof.
(j) Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be determined in accordance with the provisions of the
Purchase Agreement.
(k) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any other remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the
15
terms, provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their good faith reasonable efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience only and shall not
limit or otherwise affect the meaning hereof.
(n) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each
Purchaser under this Agreement are several and not joint with the obligations of any other
Purchaser hereunder, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser hereunder. The decision of each Purchaser to purchase the
Securities pursuant to the Transaction Documents has been made independently of any other
Purchaser. Nothing contained herein or in any other agreement or document delivered at any closing,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create
a presumption that the Purchasers are in any way acting in concert with respect to such obligations
or the transactions contemplated by this Agreement. Each Purchaser acknowledges that no other
Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder
and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its
investment in the Securities or enforcing its rights under the Transaction Documents. Each
Purchaser shall be entitled to protect and enforce its rights, including, without limitation, the
rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any Proceeding for such purpose. The Company acknowledges that
each of the Purchasers has been provided with the same Registration Rights Agreement for the
purpose of closing a transaction with multiple Purchasers and not because it was required or
requested to do so by any Purchaser.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| ANTHERA PHARMACEUTICALS, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||
| AUTHORIZED SIGNATORY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ADDRESS FOR NOTICE | ||
| c/o: | ||||||
| Street: | ||||||
| City/State/Zip: | ||||||
| Attention: | ||||||
| Tel: | ||||||
| Fax: | ||||||
| Email: | ||||||
